From the SCOTUS BLOG :
UPDATE 2:15 P.M. The Supreme Court Thursday ordered a delay in the planned execution Thursday evening of Florida death row inmate Mark Dean Schwab. The order (found here) is keyed to the coming petition for review in Schwab’s case: if the Court agrees to hear it, the stay will remain in effect; if not, the stay will dissolve immediately, according to the order. Thus, the Court continued its pattern in cases involving challenges to the lethal injection method of execution of acting on each case separately, without any hint of a general plan to delay all executions by that procedure.
Schwab’s counsel had asked the Court to stay the execution pending action on the coming petition, or, as an alternative, pending a ruling by the Supreme Court on the lethal injection protocol (in Baze v. Rees, 07-5439). The Court chose the former option, thus not linking the case to its consideration of the constitutional issues in Baze.
Schwab’s attorneys have not yet filed their petition for certiorari in the case that came up from Florida state courts — the case in which the Justices granted a stay Thursday. In fact, if his lawyers took the time allotted to pursue an appeal, it would not even be due at the Court until the end of January, and thus the Court would not be likely to act on it until March or April, at the earliest. The Court may well be deep into its deliberations on the Baze case by then, perhaps raising the practical prospect that it would not even consider Schwab’s case until after Baze is decided.
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The fate of Florida death row inmate Mark Dean Schwab, scheduled to die by lethal injection at 6 p.m. Thursday, remained uncertain Thursday morning after the Eleventh Circuit Court lifted a federal judge’s order that would have delayed the procedure. In an 11-page opinion (download here), the Circuit Court said the judge’s stay order was “contrary to the unequivocal law of this circuit.”
The Circuit Court went on to say that, even though the Supreme Court is pondering constitutional questions about the lethal injection protocol that would be used to execute Schwab, he would not be likely to benefit from that ruling. That rationale was in addition to its conclusion that circuit precedent does not allow a stay of an execution just because the Supreme Court has agreed to rule on related issues in another case. (The Supreme Court will be ruling on lethal injection challenges in the case of Baze v. Rees, docket 07-5439), likely to be argued in January.)
The fact that the Circuit Court voted to allow the execution to proceed, however, may not be the last word. Schwab’s attorneys still have pending before the Supreme Court an application to stay the execution; that application (07A383) grows out of a case that came up through Florida state courts. Moreover, Schwab’s counsel still has the option of filing a new application to reimpose a stay in the federal case that the Eleventh Circuit ruled upon Thursday morning.
Further developments are expected later Thursday.